When a board member or community manager hears the phrase “nuisance”, many thoughts come to mind regarding what this means, and how it may impact their association, but, more often than not, most do not know what a nuisance really is and what the association may need to do to deal with a nuisance. The purpose of this post is to properly educate community leaders on nuisance principles and to discuss real-word application to community associations.
What is a Nuisance?
nuisance– noun nui·sance \ˈnü-sən(t)s, ˈnyü-\
Merriam-Webster defines a “nuisance” as “a person, thing, or situation that is annoying or that causes trouble or problems.” (http://www.merriamwebster.com/dictionary/nuisance). Utilizing this definition, basically any person, thing or situation seems as if it could qualify as a nuisance. However, the legal standard for determining if a nuisance exists is not subjective in nature, it is objective and is based on a “reasonable” or “normal” person standard. Thus, if a “reasonable” or “normal” person in the same community (area) would view the activity as offensive, then it could be significant enough to be considered a nuisance.
Public vs. Private Nuisance
A nuisance can be a public nuisance or a private nuisance. A public nuisance generally involves a substantial portion of the population and threatens public health safety or welfare (a current example would be the situation of lead in the water in Flint, Michigan). Public nuisances can lead to criminal charges being filed.
In Pennsylvania, and in many other jurisdictions, a private nuisance is defined as a “nontrespassory invasion of another’s interest in the private use and enjoyment of land.” Golen v. The Union Corporation, 718 A.2d 298 (Pa. Super. 1998); citing Restatement (Second) of Torts, § 821D. The invasion must cause significant harm, which is harm of importance involving more than slight inconvenience. Harford Penn‑Cann Service, Inc. v. Zymbolsky, 549 A.2d 208 (Pa. Super. 1988). In other words, to succeed on a claim for a private nuisance, there must be a real and appreciable interference with the Plaintiff’s use or enjoyment of his land. Id.at 209. Thus, a private nuisance involves an appreciable interference with a person’s reasonable use and enjoyment of his (or her) property but does not include an actual, physical trespass.
In an association setting, “neighbor vs. neighbor” disputes frequently involve issues sounding in private nuisance. The resident or owner bringing a private nuisance claim may bring it up with the association and/or may attempt to seek relief from the court.
Frequent examples of private nuisance include noise, odor, light and dust (smoke is a more recent phenomena). It is noted that obstruction of a “view” does generally not give rise to a cognizable claim for nuisance in many jurisdictions. To wit, the Pennsylvania Supreme Court has held that a property owner cannot assert an actionable tort claim to preserve a view from his property. Cohen v. Perrino, 355 Pa. 455, 457, 50 A.2d 348, 349 (1947). In Cohen, one neighbor erected a brick wall entirely on his land some one and half inches from the other neighbor’s house, which fully obstructed that neighbor’s view from the first floor of his property. The plaintiff in the action contended that the structure was a nuisance that blocked his view and diminished the value of his property. The plaintiff sought removal of the structure. The court held that a property owner is entitled to build a wall entirely upon his own ground, or to build a party wall, that obstructs and closes the windows of an adjoining property owner. Cohenat 457, 349. A property owner enjoys the privilege of building, upon his own land, a structure which obstructs the light, air and view of an adjoining landowner. Maioriello v. Arlotta, 73 A.2d 374, 375 (Pa. 1950) and absent the grant of an express easement, adjoining landowners can erect structures that interfere with the other’s view and no cause of action can arise. Larsen v. Zoning Bd. of Adjustment, 543 Pa 415, 429, 672 A.2d 286, 293 (1996).
Nuisance in Governing Documents
Association governing documents typically contain some language in the restrictive covenants (Declaration) as it relates to nuisance, although it is generally not very specific. An example would be “[n]o noxious or offensive activities or noise shall be carried or allowed, in or upon the Common Elements or in any Unit nor shall anything be done therein either willfully or negligently which may be or become an annoyance or nuisance to the other residents in the community.” While provisions like this are vague, and are still subject to the legal standard(s) required to establish a nuisance, these provisions do provide the association with some guidance as it relates to the association’s responsibilities and requirements as it relates to a proposed nuisance in the community.
Enforcement of Nuisance Issues in Associations
Obviously, if a nuisance involves the Common Elements, an association has the authority to, and should, act to abate the nuisance. In doing so, the association should first look to its covenants in order to abate the nuisance. The association should follow the procedures set forth for enforcement as provided in the governing documents and shall provide the allegedly offending owner with reasonable due process and an opportunity to be heard in an attempt to abate the nuisance administratively prior to going to court for injunctive relief. As with all enforcement actions, the association should investigate the claim(s) and act within its enumerated powers in addressing the issue.
However, when the nuisance does not involve the common elements but instead involves a “neighbor against neighbor” dispute, what is the association’s obligation to get involved, if any? The answer is, it depends on the language in the governing documents and it depends on the nuisance that is being alleged. While owners often believe that the association has omnipresent power to enforce every issue in the association, often times, the association cannot, and should not, get involved. Private nuisance disputes may only be a “neighbor against neighbor” dispute and the association may actually have no legal standing to get involved. Of course, the association may still choose to act as an intermediary between the owners, in order to facilitate harmony and perhaps a potential resolution.
Examples of a Nuisance in an Association Setting
Smoking
Courts have held that smoke constitutes a nuisance under common law principles. See Thomsen v. Greve, 4 Neb. App. 742, 751, 550 N.W.2d 49, 55 (Neb. App. 1996) (“ . . . at least in our society, to have the use and enjoyment of one’s home interfered with by smoke, odor, and similar attacks upon one’s senses is a serious harm.”). In at least one state, Utah, the legislature enacted a statutory provision (Utah Code 78-6-1101(3)) which defines and treats tobacco smoke migration from one unit to another as a nuisance. The statute permits for a [private] right of action for a violation.
Smoke has become an increasingly prevalent private nuisance issue in many communities, seemingly due to a decreasing number of smokers. These complaints can be “neighbor against neighbor” and/or can involve the common elements and the association. Should an association even get involved when it is neighbor against neighbor in a smoking dispute?
Based on a case from Orange County California, the answer appears to be yes. In Chauncey v. Bella Palermo Homeowners’ Association, et al., 3/28/2011, Cal. Super, Case. No. 30-2011-00461681-CU-OR-CJC, a jury found an association negligent for failing to resolve a secondhand smoke dispute between neighbors in a condominium. The plaintiffs alleged that the tenant-neighbors and their visitors smoked “incessantly” on the patio adjacent to the plaintiffs’ condo as well as the adjoining sidewalks in front of their home, with the “constant infiltration and presence of secondhand smoke” entering their condominium through windows and a sliding-glass door which was a nuisance to the family. They alleged that despite their repeated complaints, the homeowners association, management company, tenants and the neighboring condominium’s owner/landlord did not stop the problem.
The Plaintiffs asked the jury to award them $120,000 and after a five-week trial, jurors awarded the family $15,500 in damages ($6,000 for economic damages and $9,500 for emotional distress (the jury found the HOA to be sixty percent responsible for the emotional distress damages, while the management company, the owner and the tenants were held liable to lesser degrees). The jury concluded that the association and the management company failed to ensure the non-smoking family’s right to the “quiet enjoyment” of their own unit. (Source: “Condo owners win secondhand smoke case”, Orange County Register, Marilyn Kalfus, March 12, 2013. http://www.ocregister.com/articles/smoke-499353-association-secondhand.html).
Interestingly, the Bella Palermo Homeowners’ Association governing documents provide, in part, at Section 9.03: “Nuisance. No noxious or offensive trade or activity shall be permitted upon any part of the covered property, nor shall anything be done thereon which shall in any way interfere with the quiet enjoyment of each of the owners of his respective residence.” Thus, while not specific as to the association’s responsibilities, a jury concluded that it was indeed the association’s responsibility to ensure the family’s “quiet enjoyment” of their unit.
Noise
Noise can be very subjective as it relates to whether or not it actually constitutes a nuisance, and it can literally come from every imaginable source, including… a baby. In 2015, some Connecticut condominium owners with a one-year-old son received the following note from their neighbor:
“Please consider buying a parenting book or consult with a child care expert . . . “[y]our baby should not be crying that loudly and for that long. Try more calming techniques, music, turn on a vacuum, rocking chair, go for a walk … anything!”
The note goes on to provide, “[i]f you don’t make changes immediately, you risk being fined by [the homeowners’] association.” The neighbor relied upon Section 4 of the Association’s Rules and Regulations that provides that excessively loud noise that interferes with the rights of neighbors is subject to possible fines.
However, does the Association have any authority to fine owners for a crying baby or to get involved? It turns out the HOA did get involved – a previous noise complaint by the same neighbor actually prodded the HOA to send the parents a warning which warned that they would be fined if the child continued to cry. (Source: http://www.realtor.com/news/trends/neighbor-files-noise-complaint-against-crying-baby)
My advice as an Association Attorney would have been for the Association to not send such a warning due to fair housing issues and other concerns. The fact that an owner lodged a complaint does not mean that the Association needed to get involved and send the parents a note about a crying baby. There are few other examples that would get an entire jury to dislike an Association such as this one.
Hot Topic: Medical Marijuana
While related to the smoking discussion above, due to the “smoke” emanating from the smoking of medical marijuana, this issue involves the legal use of marijuana for medical reasons, not simply recreational use. Accordingly, a unit owner who is prescribed medical marijuana could request a “reasonable accommodation” under the federal Fair Housing Act, 42 U.S.C. §§3601 – 3631, if the marijuana is prescribed to treat a disability. Also, some states have constitutional protections (Colorado) for marijuana use for debilitating conditions and others (Montana) statutorily permit its use for medical reasons. Therefore, associations need to be aware that the use of medical marijuana may be protected and a “nuisance” complaint related to same will need to be properly evaluated and handled with the advice of counsel.
While it is not clear if it involved medical marijuana, an example from New York City from a condominium located at 400 Central Park West involved a Board of Directors who sued residents under a nuisance theory for chronic (pun intended) marijuana smoking where the smoke and odor infiltrated the other areas of the condominium building. (Source: http://nypost.com/2016/03/31/stoner-tenant-is-smoking-out-central-park-west-condo-lawsuit/)
It is noted that Colorado also permits the use of “retail” marijuana that is not associated with medical necessity. Retail marijuana is intended for private, personal use, and such use is only legal in certain locations not open or accessible to the public. Accordingly, while the use of retail marijuana may be permitted in one’s “private” home, the protections associated with said use are not likely as strong as those associated with the use of medical marijuana in a private home and an association’s ability to deal with such an issue as a nuisance may not be as [legally] complicated.
In Summary
Associations need to be cognizant of nuisance issues and must be able to handle them correctly … assuming that they need to get involved. Before acting on a nuisance complaint, an association should elicit the cogent advice of counsel to ensure that any action by the association is both necessary and proper.
Edward Hoffman, Jr., Esq.
* The content for this Blog post is based upon the prior written work of the author as originally published in the September/October 2016 issue of CAI’s Common Ground magazine and in the November/December 2016 issue of the CAI PA-DelVal’s Chapter’s Community Assets magazine.
Inconsistent, or selective, enforcement of covenants, restrictions and rules & regulations by a Community Association is, unfortunately, a frequent occurrence. Community leaders must understand that inconsistent enforcement by an Association for even a minor issue can lead to major liability for an Association. This article will explore some of the issues surrounding inconsistent enforcement and will discuss ways to avoid potential liability for inconsistent enforcement.
Enforcement of Covenants, Restrictions and Rules & Regulations
In any type of common interest community, whether it is a planned community, cooperative or condominium, the Board (Board of Directors, Executive Board or Council) is charged with the responsibility to enforce the community’s covenants, restrictions and rules & regulations for the benefit of every member/owner in the community. This responsibility is not voluntary; rather, the Board has a duty to (1) ensure that the covenants, restrictions and rules & regulations of the community are adhered to/followed by the members/owners; and (2) enforce the covenants, restrictions and rules & regulations against a member/owner who fails to adhere/follow them. Examples of frequently encountered enforcement issues include but are not limited to pools, trash, outdoor elements (architectural control), parking, pets/animals, curtains, outdoor storage, maintenance and playgrounds.
How Does Inconsistent Enforcement Occur?
Inconsistent enforcement can occur in a number of different ways. Frequent causes of inconsistent enforcement will be discussed below, though the list is certainly not exhaustive.
1. Failing to enforce covenants, restrictions and rules & regulations.
When an Association fails to enforce its own covenants, restrictions and rules and regulations, this is, of course, inconsistent enforcement. Associations must follow the provisions set forth in the governing documents uniformly and consistently, all the time. When Boards fail to enforce an Association’s covenants, restrictions and rules and regulations properly, enforcement may become a feckless exercise. In other words, when a Board does not enforce its governing documents uniformly, all of the time, this can weaken and/or kill an enforcement action and prevent an Association from being able to enforce its own governing documents. This could wreak havoc for the governance of an Association.
2. Playing favorites.
A Board cannot choose to enforce its covenants, restrictions and rules and regulations against Mrs. Jones but not against Mr. Smith, even if Mrs. Jones is the community pariah and Mrs. Smith is the nicest, most charitable person in the community. In order to comply with its fiduciary duty to the Association and its members, a Board mustenforce the covenants, restrictions and rules and regulations equally and must not play favorites. Picking and choosing some but not all members as it relates to enforcement action(s) is a sure-fire path to a lawsuit being filed against an Association.
3. Stupid decisions.
Let’s not sugarcoat it. Community leaders make stupid decisions. Sometimes these stupid decisions lead to inconsistent enforcement of the community’s covenants, restrictions and rules & regulations. The key is recognizing, and reversing course, on a stupid decision before it becomes a problem for the association.
If the stupid decision was made in good faith (meaning, it may have been the wrong decision, but it wasn’t made for an improper purpose), then an Association will likely have a valid defense to a lawsuit alleging harm from inconsistent enforcement. Stupid decisions can be avoided by adopting and implementing an enforcement policy which will be applied uniformly and equally to all owners.
4. Lack of due process.
In the author’s home state of Pennsylvania, both the Pennsylvania Uniform Condominium Act (§ 3302(a)(11)) and the Pennsylvania Uniform Planned Community Act (§ 5302(a)(11)) provide an Association with the power to levy reasonable fines for violations of the declaration, bylaws and rules and regulations of the association – after notice and an opportunity to be heardis provided to the owner. Many other jurisdictions have similar requirements. Fining an owner and/or engaging in a related enforcement action prior to and/or without providing an owner with notice and an opportunity to be heard may lead to a successful lack of due process defense by the allegedly offending/violating owner.
It is further noted that many, if not the majority, of the governing documents reviewed by the author in his many years of Association representation have the due process provision reversed, meaning that the documents provide for the fine and/or violation notice to be sent first, and then allow an owner to appeal the fine or violation. This runs contrary to the intent of the Uniform Acts and the very concept of due process itself. Boards should carefully consider updating and amending governing documents to ensure that due process provisions are in accord with the law.
5. Unofficial enforcement.
Over the years, the author has unfortunately dealt with instances where “unofficial” enforcement occurs. Unofficial enforcement involves situations where a Board member, committee member or some other person with actual or apparent authority to act on behalf of the Association tells a member to do something as it relates to the covenants, restrictions and rules & regulations, but without the consent of the [entire] Board of Directors.
For example, an Architectural Review Committee (ARC) member unilaterally decides to verbally advise a unit owner to remove his deck because the ARC member believes the deck to be in violation of the covenants. This is unofficial enforcement because the ARC member may be viewed to have authority to tell the unit owner to remove his deck although the ARC member, in actuality, had no authority to do so. Such behavior actually leads to the opposite situation, i.e., no possible enforcement of the unauthorized, unofficial enforcement action. Boards must therefore be cognizant of the propensity for this type of activity to occur and must properly educate and train all community leaders and volunteers to avoid unofficial enforcement from occurring.
6. Drafting Rules and Regulations that are contradictory, or contrary, to the covenants and restrictions.
Rules and Regulations cannot go “beyond” the scope of the covenants and restrictions – meaning, a Board can’t adopt a rule or regulation that is more restrictive than the recorded covenants and restrictions. Moreover, even if they comply with these governing documents, Rules and Regulations must be “reasonable”, meaning, a court would need to view the Rule or Regulation as reasonably related to the purpose for which it was adopted.
Potential Liability for Inconsistent Enforcement
Inconsistent enforcement may result in a lawsuit being filed against the Association and/or its Board. An Association Board must therefore act properly, uniformly and consistently when enforcing the community’s covenants, restrictions and rules and regulations. But what standard is applied to determine if a Board acted properly, uniformly and consistently when enforcing a community’s covenants, restrictions and rules and regulations?
In Pennsylvania, and similarly in many other jurisdictions,the Business Judgment Ruleprovides that Board Members must make decisions (1) within the scope of their given authority; (2)ingood faith;(3) using ordinary care; and(4) in the best interest of the Association (i.e., not in the best interest of the Board Members). Therefore, under the Business Judgment Rule, in order to establish a cause of action for breach of fiduciary duty against an Association for an inconsistent enforcement action taken by its Board, the party complaining must allege facts which would establish that the actions of the Board were unauthorized, or that the actions had been taken fraudulently, in bad faith, or constituted self-dealing. Lyman v. Boonin, 635 A.2d 1029 (Pa. 1993).
Courts will typically not substitute their judgment for that of the directors of a corporation and will not interfere with the internal management of the corporation unless the acts complained of constitute fraud, bad faith or gross mismanagement, or are unlawful. Kelso Woods v. Swanson, 692 A.2d 1132 (Pa. Cmwlth. 1997), Mulrine v. Pocono Highland Community Association, 616 A.2d 188 (Pa. Cmwlth. 1992). Moreover, in the Pennsylvania case of McMahon v. Pleasant Valley West Association, 952 A.2d 731 (Pa. Cmwlth. 2008), the Commonwealth Court of Pennsylvania found that a homeowners association has a duty to “act reasonably in the exercise of its discretionary powers, including rulemaking, enforcement and design-control powers” and to “use ordinary care and prudence in managing the property… subject to its control.” Id. at 735.
Given the body of law that is evolving nationally as it relates to the standard to be applied to determine if a Board acted properly, uniformly and consistently as it relates to enforcing a community’s covenants, restrictions and rules and regulations, the author predicts the future trend will be for courts to combine the attributes of “reasonableness” and the Business Judgment Rule, meaning, a Board must act reasonably with respect to its “discretionary” powers, including the enforcement of covenants, restrictions and rules and regulations.
If a Board therefore acts reasonably in enforcing its covenants, restrictions and rules and regulations, it will greatly lessen the likelihood of inconsistent enforcement from occurring and potential liability for such action.
Finally, the author notes that every Association should obtain adequate Director and Officer (D&O) Liability Insurance to best protect and defend the Association and its Board (and committee) members from covered claims which may include inconsistent enforcement.
Inconsistent Enforcement is Avoidable
Community leaders rejoice! The good news is that inconsistent enforcement is entirely avoidable. Boards must proactively seek to reasonably enforce the community’s covenants, restrictions and rules & regulations uniformly and consistently. How can a Board do this? Best practices.
Best practices the Board should incorporate include:
Following the procedures set forth in the governing documents;
Ensuring due process is provided to owners;
Acting uniformly as to all owners;
Adopting/repealing/amending Rules as necessary to clarify;
Acting within the scope of the Board’s given authority;
Acting in good faith;
Using ordinary care;
Acting in the best interest of the Association;
Acting reasonably with respect to enforcement of rules and regulations; and
Contacting counsel beforeacting if there is a question.
Finally, the Board can pass a Resolution and, with the assistance of counsel, can adopt an enforcement policy that would be applied uniformly and consistently regardless of the owner or the issue that is involved (of course, such a policy can incorporate some flexibility for a Board to “reasonably” make exceptions to the policy for warranted circumstances). The enforcement policy must be followed so there is no dispute as to what must be done as it relates to enforcement. Owners must be provided with a copy of the policy.
In Summary
Association leaders need to be cognizant of the issue of inconsistent enforcement and must proactively and properly enforce the community’s covenants, restrictions and rules and regulations. Doing it correctly now will serve to avoid problems later and will greatly reduce, and perhaps eliminate, the potential for liability. Finally, if there are any questions, concerns or doubts about any type of enforcement issue, the Association should elicit the cogent advice of counsel before undertaking any type of enforcement action.
Edward Hoffman, Jr., Esq.
An abbreviated version of this article was originally published in the September/October 2017 issue of CAI’s Common Ground magazine.
As attorneys that practice Community Association Law and represent Community Associations and Condominium Associations all over Pennsylvania, we are frequently asked, “what would you look for if you were buying a home in a Community Association or Condominium Association?” The following is a brief overview of what buyers should be looking for when considering a home in an association.
Declaration of Covenants, Conditions & Restrictions (CC&Rs)
Prior to signing on the dotted line, examine the Declaration/CC&Rs for the community to make sure that you, as a potential community resident, can actually live with the limitations imposed on all owners in the community. For example, many association communities prohibit sheds, even for a single home on an acre of land. If you simply must have a shed, then buying a home in an association community that prohibits sheds is obviously not the best choice for you. By carefully reviewing the governing documents for the community and asking questions prior to the purchase, a buyer will be able to determine whether living in a particular community is actually the right choice for them.
Annual Budget
Prior to signing the agreement of sale, ask for and review a copy of the association’s budget. Look at the association’s outstanding debts and liabilities, as well as the percentage of owners that not current on assessments. If the majority of owners are behind, this may signal financial issues for the association. This may also have a negative impact on a buyer’s ability to obtain a loan to purchase a home in a condominium association because Fannie Mae, Freddie Mac and the Federal Housing Administration, which purchase and/or insure a majority of mortgages, place a cap on assessment delinquencies for condominiums.
Reserve Funds
Make sure that adequate reserve funds are set aside for maintenance of common areas in order to fund a large-scale project, like a swimming pool repair or a road repaving project (for private roads). If the reserve funds are insufficient, owners may be issued a special assessment to pay for the project. Buyers should therefore ask for a breakdown of the reserve funds as well as expected, upcoming capital expenditures.
Rental/Investment Properties
If a buyer wishes to live in the unit and not use it as a rental/investment property, the buyer should examine the percentage of units that are owner-occupied versus how many are leased. A high number of rental properties in the community could mean that a low level of owner involvement is present in the community. A high level of rentals in a community can also have a negative impact on a buyer’s ability to obtain a mortgage to purchase a home in a condominium association because Fannie Mae, Freddie Mac and the Federal Housing Administration set a minimum owner occupancy rate for condominiums.
Conversely, if a buyer is looking to use the unit as a rental/investment property, the buyer should see if there are rental restrictions present in the community and/or if the maximum threshold for rental/investment units has been reached in a condominium community prior to signing the agreement of sale.
Insurance
Ask for a copy of the “Policy Declarations” for the association’s insurance policy/policies to ensure that coverage is adequate and current. Coverage should include but not be limited to general liability coverage, director & officer liability coverage, environmental impairment coverage, employee dishonesty coverage and/or sinkhole coverage for the common elements.
Here come the holidays, and here come the decorations. But not every decoration is only a decoration … some decorations are just decorations but other things can be considered religious displays or religious symbols, which means that the things that owners put out can mean different things to different people. Also, some things are not merely decorative in nature; rather, they are either required by the religion or are part of a religious practice or tradition. So how do we handle all of this in a community association?
Decorations
To begin, with respect to holiday decorations, there appears to be a legal distinction between a mere holiday decoration and a religious symbol. According to the United States Supreme Court (when evaluating the constitutionality of Christmas and Hanukkah displays on public property in Pittsburgh under the Establishment Clause (Fourteenth Amendment)), a Christian nativity scene is a religious symbol and a Christmas tree is not. A Jewish menorah is a religious symbol, but is not solely “religious” in nature. To wit, when a menorah is put next to a Christmas tree, it is secular in nature. Whether or not a holiday decoration is actually a religious symbol or religious display depends on whether an observer would believe the decoration is an endorsement or disapproval of an individual religious choice, to be deemed by a “reasonable observer” standard. See County of Allegheny v. American Civil Liberties Union, 492 U.S. 573 (1989).
A frequently-encountered issue in community associations involves when decorations may be put out and removed. Again, care must be taken to ensure that the association is not prohibiting or otherwise stifling the display of a required religious symbol in enacting or enforcing any covenants, restrictions, policies or rules or regulations relating to holiday decorations. Once this is determined to be appropriate, the association can pass reasonable rules and regulations, subject to and in accord with the community’s recorded restrictions and covenants, related to the type, placement, size and permitted time periods related to holiday decorations.
Religious Symbols and Religious Displays
Disputes involving religious symbols and religious displays are increasing in frequency in community associations. A frequently litigated issue involves the installation of mezuzahs. A mezuzah is a small religious object that an observant Jewish person installs on the doorpost or doorframe outside of their residence in fulfillment of their religious obligations (note: this is not just a “seasonal” installation, it remains throughout the year). To these folks, mezuzahs are not “decorative” in nature; one cannot reside inside of a residence where a mezuzah is not installed on the outer doorpost or doorframe.
Currently, there are six states (Connecticut, Florida, Illinois, Rhode Island & Texas and California) that prohibit restrictions on the placement of mezuzahs or other required religious objects on outer doorposts or doors, as indicated below (important note: there are local municipalities and local governments around the country that also prohibit such restrictions, this should therefore be evaluated in your jurisdiction when undergoing an analysis of this issue).
Connecticut Public Act No. 12-113, Section 6. “No person may prohibit or hinder the owner, lessee or sublessee of a condominium unit from attaching to an entry door or entry door frame of such unit an object the display of which is motivated by observance of a religious practice or sincerely held religious belief.
Subsection (a) of this section shall not prohibit the enforcement or adoption of a bylaw that, to the extent allowed by the first amendment to the United States Constitution and section 3 of article first of the Constitution of the state, prohibits the display or affixing of an item on an entry door or entry door frame to the owner’s, lessee’s or sublessee’s unit when such item: (1) Threatens the public health or safety; (2) hinders the opening and closing of an entry door; (3) violates any federal, state or local law; (4) contains graphics, language or any display that is obscene or otherwise patently offensive; (5) individually or in combination with each other item displayed or affixed on an entry door frame has a total size greater than twenty-five square inches; or (6) individually or in combination with each other item displayed or affixed on an entry door has a total size greater than four square feet.”
Florida Statutes, 718.113(6). “An association may not refuse the request of a unit owner for a reasonable accommodation for the attachment on the mantel or frame of the door of the unit owner of a religious object not to exceed 3 inches wide, 6 inches high, and 1.5 inches deep.”
Illinois Law, 765 ILCS 605/18.4(h). “. . . [N]o rule or regulation may impair any rights guaranteed by the First Amendment to the Constitution of the United States or Section 4 of Article I of the Illinois Constitution including, but not limited to, the free exercise of religion, nor may any rules or regulations conflict with the provisions of this Act or the condominium instruments. No rule or regulation shall prohibit any reasonable accommodation for religious practices, including the attachment of religiously mandated objects to the front-door area of a condominium unit.”
Rhode Island General Laws, Chapter 34-37-5.5. “Except as otherwise provided by this section . . . an association of unit owners, as defined in § 34-36.1-1.03 (hereinafter “property owners”); may not enforce or adopt a restrictive covenant or otherwise prohibit a unit owner or tenant from displaying or affixing on the entry to the unit owner’s or tenant’s dwelling one or more religious items, the display of which is motivated by the unit owner’s or tenant’s sincere religious belief.”
Texas Property Code 202.018. “Except as otherwise provided by this section, a property owners’ association may not enforce or adopt a restrictive covenant that prohibits a property owner or resident from displaying or affixing on the entry to the owner’s or resident’s dwelling one or more religious items the display of which is motivated by the owner’s or resident’s sincere religious belief.”
California Civil Code 1940.45.
(a) Except as otherwise provided by this section, a property owner shall not enforce or adopt a restrictive covenant or any other restriction that prohibits one or more religious items from being displayed or affixed on any entry door or entry door frame of a dwelling.
(b) To the extent permitted by Article 1, Section 4, of the California Constitution and the First Amendment to the United States Constitution, this section does not prohibit the enforcement or adoption of a restrictive covenant or other restriction prohibiting the display or affixing of a religious item on any entry door or entry door frame to a dwelling that:
(1) Threatens the public health or safety.
(2) Hinders the opening or closing of any entry door.
(3) Violates any federal, state, or local law.
(4) Contains graphics, language or any display that is obscene or otherwise illegal.
(5) Individually or in combination with any other religious item displayed or affixed on any entry door or door frame that has a total size greater than 36 by 12 square inches, provided it does not exceed the size of the door.
(c) As used in this section, the following terms have the following meanings:
(1) “Property owner” means all of the following:
(A) An association, as that term is defined in Section 4080.
(B) A board, as that term is defined in Section 4085.
(C) A member, as that term is defined in Section 4160.
(D) A landlord, as that term is defined in Section 1940.8.5.
(E) A sublessor.
(2) “Religious item” means an item displayed because of sincerely held religious beliefs.
SEC. 2.
Section 4706 is added to the Civil Code, to read:
4706.
(a) Except as restricted in Section 1940.5, no governing document shall limit or prohibit the display of one or more religious items on the entry door or entry door frame of the member’s separate interest.
(b) If an association is performing maintenance, repair, or replacement of an entry door or door frame that serves a member’s separate interest, the member may be required to remove a religious item during the time the work is being performed. After completion of the association’s work, the member may again display or affix the religious item. The association shall provide individual notice to the member regarding the temporary removal of the religious item.
In all other states, it would seem that the application of the Fair Housing Act would generally limit (or prohibit) restrictions on the installation of mezuzahs or other required religious objects, based either on prohibiting a required religious display but allowing secular items to be displayed or by not permitting a member of one religion to display an item while allowing a member of another religion to do so. While community associations are currently not required to provide owners with “reasonable accommodations” for religious purposes under the Fair Housing Act, association leaders should nonetheless elicit the sage advice of counsel before making any decision related to the issue.
Of course, where there is evidence that a [seemingly] facially neutral restriction adopted by an association related to the removal of objects (name plates or signs) from the exterior of homes was really pretext for intentional discrimination based on religious prejudice (i.e., to prohibit mezuzahs), a violation of the Fair Housing Act would occur. (See Bloch v. Frischolz, 533 F. 3d 562 (7thCir. 2008), aff’d in part, rev’d in part, 587 F. 3d 771 (7thCir. 2009)).
Another religious symbol or display issue that has been litigated involves the Sukkah, which is a [temporary] outdoor structure that may be used for meals and sleeping during the Jewish holiday of Sukkoth. A condominium association in New York prohibited the placement of a Sukkah on a limited common element balcony restricted to use by the owners under the community’s Bylaws. Upon review, the court held that the Board exceeded its authority because nothing in the association’s Bylaws prohibited a Sukkah from being placed on a balcony (as opposed to being improperly placed and prohibited on a condominium common area, as was the court’s holding some eight years prior in a case litigated by the same parties). Greenberg v. Board of Managers of Parkridge Condominiums, 2000 W.L. 35921423 (N.Y. Sup. Ct., September 1, 2000, unpublished), aff’d., 294 A.D.2d 467 (2d Dept. 2002). Therefore, something which may specifically prohibited by the governing documents for a non-discriminatory reason need not be allowed by the association, but disallowing something that is not specifically prohibited by the governing documents may be deemed to be improper by a court.
As it relates to religious symbols and religious displays and fair housing discrimination, it is important to note that the United States Department of Housing and Urban Development (“HUD”) has interpreted the Fair Housing Act to include two types of discrimination: disparate treatment and disparate impact (also known as “discriminatory effect”). Disparate treatment involves discrimination due to different treatment, i.e., treating someone differently because of religion would be included. These claims involve allegations of intentional bias.
Disparate impact, on the other hand, involves discrimination by different impact, i.e., when a neutral policy or procedure has a disproportionately negative impact on a protected class. Disparate impact claims shift the focus away from “intent” to one of result.
In 2013, HUD issued a final rule entitled “Implementation of the Fair Housing Act’s Discriminatory Effects Standard” (Federal Register, Vol. 78, No. 32, Friday, February 15, 2013). This final rule provides that if a practice has a “discriminatory effect,” HUD or a private plaintiff can establish liability under the Fair Housing Act even if a facially neutral practice has no discriminatory intent. In 2015, the United States Supreme Court held that disparate impact claims are cognizable under the Fair Housing Act (see Texas Department of Housing and Community Affairs (TDHCA) v. Inclusive Communities Project, 135 S.Ct. 2507 (2015)). This case is now the law of the land as it relates to making disparate impact claims under the Fair Housing Act. What this means for associations is that although an association may not intend to discriminate against a class or group of people through a policy or practice, a violation of the Fair Housing Act may still be found if the policy or practice has a disproportionally negative impact on a protected class – and this would include religious symbols and religious displays.
It would appear that claims brought under a theory of disparate impact are a growing phenomenon and this theory will likely be utilized in future cases involving religious symbols and religious displays, as the display of religious symbols and religious displays, by default, generally only involves one protected class of people (i.e., members of one religion that requires or otherwise utilizes the religious symbol or religious display) and not other people.
To wit, in Philadelphia, a case with disparate impact allegations was recently filed in federal court (Tripathi v. Murano Condominium Association, Case No. 2:18-cv-01840-JP (U.S. Dist. Ct., E.D. Pa., May 3, 2018)). The case involved a Hindu condominium owner who wanted to hang a toran, a decorative object, in his doorway. Doing so contradicted the association’s rules, which at the same time specifically permit mezuzahs. The matter appears to have settled, as it was dismissed, and as such, the interpretation and application of claims brought under a disparate impact theory remain unclear.
Finally, when faced with a “holiday decoration” situation in an association, care must be taken to properly evaluate the issue in order to determine if it is instead a religious symbol or religious display in order to plan the proper course of action.
– Edward Hoffman, Jr., Esq.
* Content for this Blog post is primarily based upon the published written work of the author, notably, “The Rights Approach: The First Amendment can create chaos for community associations if they don’t understand the law”, published in the November/December 2018 issue of Common Ground, a publication of the Community Associations Institute.
Chances are, your community association has a virtual presence on the Internet. Whether your association runs its own website, has a site run by a management company or some other third-party vendor, or is active on a social media site, association leaders and Managers should take some steps in order to protect the community association from potential legal problems.
Step one: Have a plan.
All too often, communities go “online” without really having a plan. The end result is usually a disorganized free-flow of ideas and information that serves no real purpose aside from being able to say that the community is online. Instead of simply throwing content on a website, the community’s leaders should determine exactly why they want the community to be online. Determining why the community is going to be online will then automatically serve to determine what gets put online. For example, if the community’s main purpose in going online is to disseminate information relevant to the community to its member-owners, then the content that is posted should be specifically tailored to that audience. Posting content about topics unrelated to information about the community will only distract from the purpose of the association’s website and may lead to unexpected problems down the road.
Step two: Limit content.
From a liability perspective, the Achilles heel for most association websites is the failure to limit content. Content should be limited, by the association, to matters that benefit the community. A community should never allow unrestricted content to be posted to its website, whether it comes from members or non-members. In other words, the official association website is not the place to allow people to post their gripes about the association, its leadership, other owner-members, the municipality, the landscaper, the Manager or a host of other unsuspecting victims. The association website should therefore not contain an “open-posting” forum, bulletin board or other area where people can freely post anything they want to the website. Remember, this content gets posted to the association website, which means that the association can be held responsible for its content. If owner-members want the community to have an online “bulletin-board” to post garage sales, items for sale, recipes, a community calendar and other events, the community should encourage members to submit this information to the designated contact person for the community website, either by email, mail or in person. This person can then compile the information, edit if necessary, and post it to the website.
• Public v. Private Content
With respect to any content that is posted by the association to its website, the difference between public and private content must be examined very carefully by the association. In a nutshell, public content is content that the whole world can see, for example, the association name, the location of the community, amenities and photographs of common areas. Public content is generally included in an association website to show people why that community is, in fact, a great place to live. Some associations post association documents, like committee forms, budgets, meeting minutes and other items as public content. Generally, associations should post these items to a designated “owners-only” area that requires a username/login and a password for access. While people who do not live in the community might, for some odd reason, want to read the association’s budget or check out last month’s meeting minutes or a blank architectural review committee application, they are not entitled to have access to these documents. These types of documents are relevant to those who live in the community and access to them should therefore be limited to residents.
An association’s controlling documents might provide the association with the ability to post information on a community bulletin board, electronic or otherwise, including the names of owners that are more than 90 days delinquent on their assessments. This information should not be posted to the “public” portion of the website because of privacy concerns and fair credit issues. For instance, if Mrs. Jones in unit 2B is 120 days in arrears on her assessments, a quick Internet search of “Mrs. Jones, unit 2B, town of XYZ” might provide this information to a potential employer, creditor or other person that might wrongly or illegally hold it against Mrs. Jones. Sometimes sharing information becomes a problem not only for those whom are the subject of the information, but also for those who are innocently providing the information for some good-faith purpose. Remember, the general rule is that once information is out in cyberspace, it can’t be taken back or permanently deleted. Therefore, it is better to ensure that the content that is posted on the association website is really content that is safe for public consumption.
Dealing with private content is a bit trickier since there are two levels: (1) private content which all members of the community have access to; and (2) private content specific to each individual owner. All members might have access to association forms and documents. If an association wants to post its various community documents online for the benefit of its owner-members, the association can easily set up a designated area that requires a login and password to gain access to this downloadable information. The designated website administrator should be the only person able to upload documents to the website, so that the association can control which documents are posted.
Associations should also include the community’s online bulletin board, calendar and contact information for the Manager in the private members-only area rather than on the public portion of the website. While this is “private” content which only members of the community can view, associations should limit the content that goes in this area just as they limit the content that goes in the public area of the website. For example, while the association might be allowed to post the names of owners that are more than 90 days delinquent on their assessments, it doesn’t mean that the association should do it— even on the “private” portion of the website. Common sense should come into play and an evaluation of why the association is posting this information should be undertaken. Moreover, if it decided that this arrearage information will be posted to the private portion of the website, the association must uniformly apply this standard to all members of the community on a consistent basis, and not just a handful of people in a piecemeal fashion. Otherwise, the association might find themselves defending an “unequal enforcement” or defamation to reputation lawsuit brought by the owner that feels like they were singled out by the association.
The second level of private content, content that is specific to each individual owner, is an area that is ripe for potential legal problems if the information were to get into the wrong hands. This content includes, but is not limited to, banking and account information for electronic assessment payments by owners, the owner’s account history and other Personally Identifiable Information (PII) like Social Security numbers, vehicle license plate numbers, birthdays, private telephone numbers and an owner’s age. Therefore, if an association chooses to post this content on the Internet, it must do so with the understanding that this information is confidential in nature and every possible precaution must be undertaken to protect this information. Aside from the normal login & password requirements, the portion of the site should also utilize a secure connection (usually Transport Layer Security, or TLS, in the form of an “https” page over the Internet) to protect the information. Associations should use a qualified, professional management company to provide such a service or a third-party vendor that specializes in this area of information technology. Retaining a third party to handle managing and protecting the private content is a good idea, but this may not completely absolve an association from liability should there be a breach of information. However, every association should strive to be proactive when it comes to protecting private content. A failure to be proactive can lead to potentially devastating consequences for an affected owner and a strong likelihood that the association will face some sort of legal liability for the breach.
Step three: Monitor, monitor and monitor some more.
If an association decides that it wants to allow some level of interactivity or unrestricted posting on its website, then it is imperative that the association monitor what is being posted on the site. Monitoring the content that is posted to the site should be done on a consistent, timely basis by a designated moderator. The moderator should enforce the ground rules that must be listed on the site as it pertains to posting. Ideally, the association should have a policy for posting that the site visitor must agree to prior to being able to post any content to the website. Any violation of the policy can be grounds for removal of the post and a ban on all future posts on the association’s website. This type of content monitoring and moderation can also be performed on social media websites like Facebook, so long as the association sets up and runs the social media page on behalf of and in the name of the association. Never allow an owner or some other person to set up a social media page on behalf of or in the name of the association, because (a) others may think it is the official association page and (b) the association won’t be able to manage/restrict the content on the page. The future trend is for the association to create an acceptable use policy for members who want to post to an “open” association website as well as a social media policy identifying the association’s social media pages as the official page.
Finally, while implementing acceptable use and social media policies and monitoring posted site content is surely proactive behavior, these actions can’t completely relieve an association of potential liability for improper, damaging, false, inflammatory or defamatory content that is posted to the association’s website or social media page. The key is to never acquiesce, either by way of action or by a failure to act, to potentially harmful postings on the association site.
Step four: Be on the lookout for the association in cyberspace.
Cyberspace, like outer space, is a seemingly endless place. Just as exploration of outer space is possible, so is exploration of the Internet. However, rather than using spacecraft, all we must do to explore the Internet is log a few keystrokes. In other words, we can utilize the myriad of search tools available on the World Wide Web to pinpoint the exact information we need. Using sites like Google and Yahoo!, for example, we can search most of the information that is publicly available on the Internet for free and with very little effort.
Thus, my advice is to perform a search, every so often, on the association’s name. This is due to the prevalence of copycat websites which purport to be the official association site, as well as an increasing number of “anti-association” sites created by disgruntled owners, former owners, non-community member neighbors or others that have an axe to grind with the association. An association should act quickly to remove a website which purports to be the official site. This is no easy task, and it usually involves litigation against the copycat site operator.
Similarly, should an “anti-association” website be located which contains negative, inflammatory, defamatory, false, confidential or damaging information on the website, the association must take affirmative steps to try and have this website taken down or at least have the harmful information removed from the site.
On social media sites, associations may discover unofficial pages run by owners, former owners and others, related to the association. If run by current owners, the association should ask the owner to remove the non-official page and ask all owners to join, “like,” or follow the official page for the community.The situation is a bit more problematic when groups of owners maintain their own page. These members of the community may use the social media page, which is sometimes public in nature due to a lack of privacy restrictions set up by the page administrator, to vent about issues of concern to the community. Association leaders or Managers should try to monitor these pages, if at all possible, and do the best they can to have the social media users limit their comments about the community or other owners. Of course it’s not always possible find every page that is somehow related to the community, but if one is found efforts should be made to try and protect the interests of the community.
Finally, community leaders, Board Members and Managers should avoid connecting with association members on social media sites. By limiting their virtual relationships, they can avoid issues surrounding favoritism and ever-present fiduciary duty issues. If not “friending” others in the community is simply not possible, then the community leaders and Manager must refrain from posting comments about the community or community issues on any website that is not designated as an official community site. Similarly, even if the community leaders and Manager are not posting comments about the community or community issues on their own or their friends’ social media walls, they have an obligation to look out for the best interests of the association when reading comments that are made by others about the association.
Associations must be proactive in cyberspace, in order to preserve the “virtual brand” of the association and protect the best interests of the association. When there is doubt as to what to do, association leaders and Managers should seek the advice of qualified legal counsel so the association can stay in control and stay out of court.
By Edward Hoffman, Jr., Esq.
* The content for this Blog post is based upon the prior written work of the author as originally published in the November/December 2011 issue of Community Assets magazine and the May/June 2012 issue of Common Ground magazine.
As Bob Dylan noted in 1964, “The Times They Are A-Changin’.” While this anthem of societal change may seem unrelated to the 2011 residential real estate market, in actuality, Dylan’s poetic title track serves as a template for today’s buyers. Back in 1964, most buyers were limited to “traditional” home ownership. Today’s buyers have a myriad of options, including living in a common interest community (CIC).
In a nutshell, CICs are formal legal entities (usually non-profit corporations) created to provide a common basis for the maintenance and preservation of the homes and/or the property contained in the community. In Pennsylvania, CICs are generally set up as either homeowners’ associations (HOAs) or condominium associations. CICs are subject to the statutes that govern both non-profit corporations and common interest communities. Most homes that are located within a CIC are purchased subject to Covenants, Conditions & Restrictions (CC&Rs), which are restrictions placed upon each home to maintain uniformity within the community. This uniformity will hopefully lead to a preservation of property values for the homes located within the community. Homeowners pay dues or assessments so the CIC can pay expenses related to maintaining common property in the community, including roads, gated entrances and drainage basins and often to provide various services and/or amenities that are common to all of the homes in the community, such as trash removal, snow removal, security, landscaping, a fitness center, a swimming pool, a community center, or a playground.
Today’s buyers interested in purchasing a home in a CIC should consider a few important things, including:
Reserves
Make sure that the reserve funds set aside for maintenance of common areas are adequate to fund a large scale capital improvement project, like repaving a road or replacing a roof. Owners will be issued a special assessment to pay for the project in addition to the normal assessment if the reserve funds are not enough. If not enumerated in the resale certificate issued to the buyer prior to closing, the buyer should ask for a breakdown of the reserve funds as well as expected, upcoming capital expenditures.
Budget
Ask the CIC Association or the seller for a copy of the budget. Pay careful attention to the Association’s outstanding debts and liabilities, as well as the percentage of homeowners that are not paying their assessments. If the majority of homeowners are not paying, this spells financial trouble for the Association as well as its member-owners. This could also have a negative impact on a potential buyer’s ability to obtain a mortgage to purchase a home in a condominium association. Freddie Mac, Fannie Mae and the Federal Housing Administration, which purchase and/or insure a majority of mortgages, place a 15% cap on assessment delinquency rates in order to approve lending for homes in the community.
Insurance
Ask for a copy of the Association’s insurance policy to make sure that the community’s coverage is adequate. This is separate and distinct from an owner’s homeowners’ insurance policy. Ask your insurance agent to look at the Association’s policy. Coverage should include but not be limited to general liability coverage with no general aggregate, director & officer liability coverage, environmental impairment coverage, guaranteed replacement cost coverage and employee dishonesty coverage.
Number of Investment Properties
If a potential buyer is looking to live in the home as opposed to using the home as an investment vehicle or rental property, the buyer should look into the percentage of homes that are actually owner-occupied versus how many are leased to tenants. A high number of rental properties in the community could mean that a low level of owner involvement is present in the community. A high level of rental properties in a community can also have a negative impact on a potential buyer’s ability to obtain a mortgage to purchase a home in a condominium association. Freddie Mac, Fannie Mae and the Federal Housing Administration currently require a 51% owner occupancy rate in order to approve lending for homes in the community.
Covenants, Conditions & Restrictions (CC&Rs)
Look at the CC&Rs for the community to make sure that you, as a potential community resident, can live with the limitations imposed on all owners in the community. For instance, many communities require that curtain backs–the side of the curtain that faces the window–be one color so that all of the community’s homes have a uniform appearance from the outside. If you must have fuchsia curtains for the world to see in every one of your windows, then perhaps buying a home in a common interest community is not the best choice for you.
Homeowners living in a CIC enjoy many attractive benefits and amenities, including security, access to recreational facilities and activities, and fewer worries about property maintenance. By carefully reviewing contracts and asking questions, homeowners will be able to determine whether living in a particular community is right for them.
By Edward Hoffman, Jr., Esq. Originally published in Lehigh Valley Marketplace, December 2011
